Brian Gooden v. State of Arkansas

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

JUDGE JOSEPHINE LINKER HART

DIVISION I

BRIAN GOODEN

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CACR00-845

April 2, 2003

APPEAL FROM THE JEFFERSON COUNTY CIRCUIT COURT

[NO. CR95-523-2]

HONORABLE H.A. TAYLOR,

CIRCUIT JUDGE

REVERSED AND DISMISSED

Appellant, Brian Gooden, challenges the sufficiency of the evidence to support the circuit court's revocation of his probation. Because the circuit court revoked appellant's probation after the original probation period expired, we reverse and dismiss.

According to an order filed January 14, 1992, after pleading guilty to the crimes of fleeing with injury and aggravated assault in CR-91-491-2, appellant was placed on probation for three years and ordered to pay a $500 fine. Appellant also pleaded guilty to first-degree forgery and second-degree forgery in CR-91-621-2 and was likewise placed on probation for three years. He was ordered in both cases to pay court costs, a crime victim's reparation fee, a needs assessment fee, and restitution.

On October 13, 1994, the State filed a petition to revoke appellant's probation in both cases, alleging that appellant had not reported, had used marijuana, and had not made payments as instructed by the court. On November 9, 1994, the court entered an order in

which it found that appellant had violated the conditions of his probation. The court continued his probation and ordered him to comply with the conditions of his probation. On December 9, 1994, the court entered an order extending by one year appellant's probation period in CR-91-491-2.

On August 22, 1995, the State filed another petition to revoke appellant's probation in CR-91-491-2 and CR-91-621-2, alleging that appellant had committed the crime of theft of property and had failed to make regular payments as ordered by the court. On October 23, 1995, a revocation hearing was held at which the court concluded that appellant was implicated in the theft. On October 24, 1995, the court entered a judgment and commitment order sentencing appellant on each count to six years' imprisonment for fleeing and aggravated assault in CR-91-491-2 and first-degree forgery and second-degree forgery in CR-91-621-2, with the four sentences to run concurrently. In an amended judgment and commitment order filed August 29, 1996, appellant's sentence on each count was reduced to concurrent terms of four years' imprisonment followed by a suspended sentence of two years.1

Without addressing the merits of appellant's sufficiency argument on appeal, we reverse and dismiss because appellant's probation was revoked outside the original probation period. We note that "the issue of whether a circuit court can revoke probation after the expiration of the probation period is one of jurisdiction." Carter v. State, 350 Ark. 229, 233, 85 S.W.3d 914, 916 (2002). Further, jurisdictional issues may be first raised by this court. Jones v. State, 297 Ark. 485, 486, 763 S.W.2d 81, 82 (1989). This case is governed by the law in effect prior to the adoption of Act 1569 of 1999. Bagwell v. State, 346 Ark. 18, 21-22, 53 S.W.3d 520, 523-24 (2001).

Here, appellant's original three-year probation period would have begun to run on January 14, 1992. See Carter, 350 Ark. at 232, 85 S.W.3d at 916 (calculating time from the filing dates). Thus, it would have expired January 14, 1995. It is apparent that appellant's probation period in CR-91-621-2, which was never extended, had run by the time the State filed its August 22, 1995, petition to revoke appellant's probation in that case. The question before us then is whether in CR-91-491-2, in which appellant was sentenced to three years' probation and a fine of $500, the circuit court properly extended the probation period by one year to January 14, 1996, thus rendering the revocation of his probation in October of 1995 timely.

A guilty plea coupled with a fine and probation constitutes a conviction, which, in turn, entails execution, and a trial court cannot modify or amend the original sentence once a valid sentence has been put into execution. Jones v. State, 54 Ark. App. 150, 153, 924 S.W.2d 470, 472 (1996). We conclude that because appellant's sentence was placed into execution when he was sentenced to three years' probation and fined $500, the circuit court could not modify his sentence by extending the period of probation for one year, and becausethe original three-year period had expired, the court could not revoke appellant's probation. See id. Moreover, the order extending his probation did not indicate that his probation was extended pursuant to Ark. Code Ann. § 5-4-303(f) (Repl. 1997), which provided in part as follows:

If the court has suspended the imposition of sentence or placed a defendant on probation conditioned upon his making restitution or reparation and the defendant has not satisfactorily made all his payments when the probation period has ended, the court shall have the authority to continue to assert its jurisdiction over the recalcitrant defendant and extend the probation period as it deems necessary or revoke the defendant's suspended sentence.

Further, while the statute specifically granted authority to the circuit court to "extend the probation period as it deems necessary or revoke the defendant's suspended sentence," it did not specifically permit revocation of a defendant's probation. Presumably, had the drafters of that statute intended for the circuit court to have authority under that statute to revoke probation after extending the probation period, they would have done so, since they specifically permitted revocation of a defendant's suspended sentence. "The phrase expressio unius est exclusio alterius is a fundamental principle of statutory construction that the express designation of one thing may properly be construed to mean the exclusion of another." Gazaway v. Greene Cty. Equalization Bd., 314 Ark. 569, 575, 864 S.W.2d 233, 236 (1993). Consequently, because the original three-year probation periods in this case had expired and the circuit court had no authority to revoke appellant's probation, we must reverse and dismiss.

Reversed and dismissed.

Bird and Crabtree, JJ., agree.

1 The delays associated with this case are discussed in Gooden v. State, 344 Ark. 291, 40 S.W.3d 271 (2001); Gooden v. State, 344 Ark. 742, 42 S.W.3d 528 (2001); Gooden v. State, 346 Ark. 24, 53 S.W.3d 532 (2001); Gooden v. State, 348 Ark. 302, 72 S.W.3d 488 (2002); and Gooden v. State, 350 Ark. 297, 86 S.W.3d 853 (2002). The case was ultimately transferred to this court on December 11, 2002.